Citation Nr: 0604910
Decision Date: 02/21/06 Archive Date: 02/28/06
DOCKET NO. 96-32 030 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased rating for anxiety reaction,
currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1966 to May 1968.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which continued a 50 percent disability rating
for anxiety reaction with depressive features.
In April 2005, the Board remanded the claim for further
development. Additional evidentiary development has been
conducted, and the claim is now properly before the Board for
final appellate review.
FINDING OF FACT
The competent and probative evidence of record demonstrates
that the veteran's service-connected anxiety reaction is
characterized by a neutral mood, appropriate appearance,
behavior, and affect, relevant, coherent, and logical speech,
good memory, no impairment of thought process, communication,
or impulse control, and intermittent episodes of depression
and anxiety attacks.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 50 percent
for anxiety reaction have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic
Code 9400 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
Service connection for anxiety neurosis with depressive
features, headaches, and numbness of the head was established
in August 1976; a 30 percent evaluation under Diagnostic Code
(DC) 9400 was assigned, effective July 1976. At that time,
the RO considered a VA medical record which showed the
veteran was hospitalized from November 1975 to January 1976
with complaints of headaches and numbness of the head. The
diagnosis was anxiety neurosis with depressive features. The
RO also considered VA progress notes dated August to November
1975, examination reports dated March and April 1976, and a
hospital report from 1976, which continued the veteran's
diagnosis.
In September 1978, based on new and material evidence that
the veteran was severely incapacitated due to his disability,
the RO increased the veteran's disability rating to 70
percent for psychotic depressive reaction, effective April
1977. The Board notes the veteran's mental disorder was
variously diagnosed as a nervous condition, numbness of the
head, anxiety neurosis with depressive features, organic
brain syndrome associated with seizures of undetermined
origin.
In September 1979, the RO requested that the Chief Medical
Director (CMD) of VA review the veteran's claims file and
determine the veteran's correct diagnosis. At that time, the
CMD was unable to render an opinion based upon reasonable
clinical certainty, and recommended the veteran be evaluated
after a reasonable period to determine the correct diagnosis.
Based on reports of treatment and opinions submitted from
physicians who treated the veteran, the CMD determined that
the correct diagnosis was anxiety reaction with depressive
features.
In May 1983, the RO decreased the veteran's disability rating
for anxiety reaction with depressive features to 50 percent,
effective August 1983. The RO based its determination on VA
outpatient treatment records and an April 1983 VA examination
which showed the veteran's symptomatology had improved.
The veteran then appealed to the Board. In an April 1984
decision, the Board determined that a rating in excess of 50
percent for anxiety reaction with depressive features was not
warranted based upon the veteran's documented symptomatology.
In October 1994, the veteran's representative submitted an
informal claim for an increased rating for anxiety reaction
with depressive features, stating he had been receiving
treatment at the VA Outpatient Clinic in Waco, Texas, for the
past year.
VA outpatient treatment records from the VA Medical Center
(VAMC) in Waco, Texas, dated September 1993 to December 1994,
document the veteran's treatment for narcolepsy and other
medical problems. The records do not contain any reference
to the veteran's anxiety disorder.
In November 1995, the RO issued a rating decision which,
based on the VA outpatient treatment records mentioned above,
continued the veteran's 50 percent disability evaluation.
In January 1996, the veteran submitted a timely notice of
disagreement as to the November 1995 rating decision. He
said he had received treatment for his anxiety disorder at
the VAMCs in Waco and Houston, Texas.
In September 1996, the veteran underwent a private
psychiatric evaluation. He was casually dressed and groomed;
his body hygiene was slightly impaired. He was cooperative
but his eye contact was poor. His psychomotor activities
were slow and he interacted "fairly well" with the
examiner. The veteran's mood was anxious and mildly
dysphoric and his affect was flat. His speech was clear and
goal oriented. He was coherent, alert, and well oriented to
time, place, and person. Remote memory, insight, and
judgment were fair and his concentration was impaired. The
examiner noted the veteran did not have any friends, but also
noted he reported to the examination with a friend. The
examiner rendered several different diagnoses which did not
include an anxiety disorder.
VA outpatient treatment records, dated October 1995 to August
1996, show the veteran was treated for various problems,
including mental health. In November 1995, the veteran was
well-groomed, cooperative, and alert, and his motor activity
was normal. The veteran's articulation was normal in volume
and rate, and his affect had a broad range and was cheerful,
appropriate, and stable. His thought production was normal
and coherent without delusions or hallucinations. The
veteran was oriented to time and his attention,
concentration, registration, and recall were intact. In
April, May, and August 1996, the veteran was noted to
experience "trance states" and variants of catalepsy one to
three times a month. The veteran was very well groomed,
polite, and cooperative, but was noted to look drowsy even
while talking. He described his mood as being down often and
stated that his night time sleeping was very erratic.
An October 1996 VA outpatient treatment record from the VAMC
in Houston, Texas, shows the veteran was seen for treatment
of his narcolepsy. The examiner noted the veteran was well-
groomed, polite, and cooperative, but noted he looked a
little drowsy while he was talking. The veteran described
his mood as being down often, and stated his night time
sleeping was very erratic.
In October 1996, the veteran was afforded a VA examination.
The claims file was reviewed. The veteran stated he has
moods of depression when he would feel "kind of low," which
would come and go. He stated he became agitated when he was
around a lot of people, and preferred to be alone, but stated
he is not short-tempered. He also stated he used to have
crying spells but had not had one in several years. He
admitted to having suicidal thoughts in the past but stated
he had not experienced that kind of thinking recently. On
examination, the veteran was somewhat lethargic, but was
cooperative and alert to time, place, and person. His mood
was dejected and anhedonic. His affect was limited in range
but was appropriate to expressed thought content. The
examiner noted the veteran was slow in responding to
questions sometimes, but noted his answers were relevant and
goal oriented. There was no evidence of hallucinations or
delusions. The diagnosis was depressive disorder, not
otherwise specified.
In October 1996, the veteran underwent another private
psychiatric evaluation. He stated he sometimes had anxiety
attacks twice a week which he got when hewas sad. He stated
he slept four to five hours a night. He denied having
appetite disturbance, crying spells, or sad or blue moods.
He also denied feeling hopeless, helpless, or worthless. He
also denied having suicidal or homicidal ideations, racing
thoughts, shopping sprees, or drug usage. He admitted having
irritability of mood and decreased energy. The examiner
noted the veteran had a fair ability to interact in a social
setting. The examiner also noted the veteran's
concentration, persistence, and pace were fair and sometimes
poor at times. He was noted to have moderate deterioration
in social, affective, and occupational functioning. The
diagnosis was depressive disorder, not otherwise specified
and anxiety disorder, not otherwise specified.
The Board notes the criteria for evaluating mental disorders
was changed in November 1996, therefore, the veteran was
afforded another VA examination in July 1999. On
examination, the veteran was calm and cooperative, and had a
good attitude. His thought process was continuous, but he
talked slow about his anxiety and multiple medical problems.
There were no illusions, delusions, or hallucinations noted.
There were also no suicidal or homicidal ideations detected.
The veteran's behavior was appropriate, but his outlook was
low and his voice was toneless and very monotonous. His
memory and personal hygiene were good and he was oriented to
time, place, and person. No ritualistic behavior was
observed and the veteran was logical, coherent, and relevant.
The examiner noted the veteran had recurrent panic attacks
with high anxiety, but noted his temper was under control.
The veteran was noted to have problems sleeping. The
diagnosis was generalized anxiety disorder, neurosis, with
depressive features.
He was afforded another VA examination in May 2004, at which
he reported having anxiety attacks and feeling depressed at
times for many years. He described his anxiety attacks as
feeling anxious, tense, worrying, having trouble
concentrating, being irritable easily, and losing his temper
easily. He stated the depression comes and goes and lasts
two to three days. He also described his depression as 6/10,
with 10 being the worst depression. The veteran reported
having treatment which he stated was helping. The examiner
noted the veteran functions okay in between his anxiety
attacks and getting depressed. He reported falling asleep
several times during the day. He also stated he gets up
frequently during the night and reported hearing someone
calling his name once in while. On examination, there was no
impairment of thought process or communication and there was
no evidence of delusions. The veteran's behavior was
appropriate and he had good eye-to-eye contact. He denied
any suicidal or homicidal thoughts at the time, but stated he
thought about hurting someone in the past although he never
did. The examiner noted the veteran takes care of his
personal hygiene very well. He was oriented to person,
place, and time. There was no impairment to his short or
long term memory and there was no evidence of any obsessive
or ritualistic behavior. The veteran's speech was relevant
and coherent and there was no evidence of any lessening of
associations. The veteran complained of having panic attacks
for many years but denied having panic attacks presently.
The examiner noted there were no signs of anxiety during the
interview. The examiner also noted the veteran appeared
somewhat depressed. He complained of having periods of
depression for many years, which occur sometimes more than
other times, but he stated he always stays depressed. The
veteran also complained of getting up frequently during the
night and reported falling asleep 5 to 6 times a day. The
diagnosis was generalized anxiety disorder with depressive
features and narcolepsy.
As noted, in April 2005, the Board remanded the claim in
order for additional outpatient treatment records to be
obtained.
VA outpatient treatment records, dated April 2003 to February
2005, show the veteran received treatment for various health
problems. In January 2004, July 2004, and February 2005, the
veteran was reported as alert, oriented, calm, friendly,
polite, and well-groomed. He had fluent, logical speech,
with good eye contact. His mood was neutral. His
appearance, behavior, and affect were appropriate to the
situation. He was not psychotic, paranoid, suicidal, or
homicidal. The diagnosis was generalized anxiety disorder.
II. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. § 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005).
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his or her possession
that pertains to the claim, in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In the Mayfield case, the U.S. Court of Appeals for Veterans
Claims (Court) addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty-to-notify (38 U.S.C.A.
§ 5103(a)). Considering the decisions of the Court in
Pelegrini and Mayfield, the Board finds that the requirements
of the VCAA have been satisfied in this matter, as discussed
below.
The record shows the veteran has been notified of the
applicable laws and regulations which set forth the criteria
for entitlement to an increased rating. In an April 2003
letter, the RO informed the veteran of the types of evidence
needed to substantiate his claim as well as its duty to
assist him in substantiating his claim under the VCAA.
While the April 2003 letter did not explicitly ask the
veteran to provide "any evidence in [his] possession that
pertain[s] to his claim, see 38 C.F.R. § 3.159(b)(1), the
June 2004 and September 2005 supplemental statements of the
case (SSOC) contain the complete text of 38 C.F.R.
§ 3.159(b)(1), which contains such notice. All the above
notices must be read in the context of prior, relatively
contemporaneous communications from the RO. See Mayfield, 19
Vet. App. at 125. Under these circumstances, the Board is
satisfied that the veteran has been adequately informed of
the need to submit relevant evidence in his possession.
Although the veteran was not given complete notification of
the VCAA requirements until after the initial unfavorable AOJ
decision, he has not been prejudiced thereby. He responded
to the RO's communications with additional argument, thus
curing (or rendering harmless) any previous omissions. In
addition, it appears that all obtainable evidence identified
by the veteran relative to his claim has been obtained and
associated with the claims file, and that he has not
identified any other pertinent evidence, not already of
record, which would need to be obtained for a fair
disposition of this appeal. For these reasons, any failure
in the timing or language of VCAA notice by the RO
constituted harmless error. Accordingly, we find that VA has
satisfied its duty to assist the veteran in apprising him as
to the evidence needed, and in obtaining evidence pertinent
to his claim under the VCAA.
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
held that an appellant need only demonstrate that there is an
"approximate balance of positive and negative evidence" in
order to prevail. The Court has also stated, "It is clear
that to deny a claim on its merits, the evidence must
preponderate against the claim." Alemany v. Brown, 9 Vet.
App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).
III. Analysis
Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002).
Separate rating codes identify the various disabilities.
38 C.F.R. Part 4 (2005). In determining the level of
impairment, the disability must be considered in the context
of the entire recorded history, including service medical
records. 38 C.F.R. § 4.2. An evaluation of the level of
disability present must also include consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10.
Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
When entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Although
rating personnel are directed to review the recorded history
of a disability in order to make a more accurate evaluation,
see 38 C.F.R. § 4.2, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55 (1994).
The Board notes that in 1996, during the pendency of the
veteran's claim and appeal, amendments were made to the
rating criteria evaluating mental disorders. See 60 Fed.
Reg. 54,825 (Nov. 7, 1996) (codified at 38 C.F.R. § 4.129,
DCs 9201 to 9521 (2005)). This amendment was made effective
from November 7, 1996.
Accordingly, the Board will review the disability rating
under the old and new criteria. See VAOPGCPREC 7-2003. The
RO evaluated the veteran's claim under the old regulations in
making its rating decision dated November 1995. Likewise,
the March 1996 SOC evaluated the claim using the old
regulations. In June 2004 and September 2005 the RO issued
SSOCs that evaluated the veteran's claim using the new
regulations effective from November 7, 1996. A review of the
record demonstrates that the RO considered the old and new
rating criteria, and the veteran was made aware of the
changes. See Bernard v. Brown 4 Vet. App. 384 (1993).
The veteran service-connected anxiety reaction is currently
rated 50 percent disabled under the criteria of 38 C.F.R.
§ 4.71a, Diagnostic Code 9400 (1995). Prior to November
1996, the severity of psychiatric disability was based upon
actual symptomatology, as it affects social and industrial
adaptability. 38 C.F.R. § 4.130 (1995). The criteria under
the General Rating Formula for Psychoneurotic Disorders, in
part, are as follows:
0% Neurotic symptoms which may somewhat adversely
affect relationships with others but which do not
cause impairment of working ability;
10% Less than criteria for the 30 percent evaluation,
with emotional tension or other evidence of anxiety
productive of mild social and industrial
impairment;
30% Definite impairment in the ability to establish or
maintain effective and wholesome relationships with
people. The psychoneurotic symptoms result in such
reduction in initiative, flexibility, efficiency
and reliability levels as to produce definite
industrial impairment;
50% Ability to establish or maintain effective or
favorable relationships with people is considerably
impaired. By reason of psychoneurotic symptoms the
reliability, flexibility , and efficiency levels
are so reduced as to result in considerable
industrial impairment;
70% Ability to establish or maintain effective or
favorable relationships with people is severely
impaired. The psychoneurotic symptoms are of such
severity and persistence that there is severe
impairment in the ability to obtain or retain
employment;
100% The attitudes of all contacts except the most
intimate are so adversely affected as to result in
virtual isolations in the community. Totally
incapacitating psychoneurotic symptoms bordering on
gross repudiation of reality with disturbed thought
or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic,
and explosions of aggressive energy resulting in
profound retreat from mature behavior.
Demonstrably unable to obtain or retain employment.
Note (1): Social impairment per se will not be used as
the sole basis for any specific percentage evaluation,
but is of value only in substantiating the degree of
disability based on all of the findings.
Note (2): The requirements for a compensable rating are
not met when the psychiatric findings are not more
characteristic than minor alterations of mood beyond
normal limits; fatigue or anxiety incident to actual
situations; minor compulsive acts of phobias; occasional
stuttering or stammering; minor habit spasms or tics;
minor subjective sensory disturbances such as anosmia,
deafness, loss of sense of taste, anesthesia,
paresthesia, etc. When such findings actually interfere
with employability to a mild degree, a 10 percent rating
under the general rating formula may be assigned.
38 C.F.R. § 4.132, DCs 9400 to 9411 (1995).
The criteria under the General Rating Formula for Mental
Disorders, effective from November 7, 1996, are as follows,
in part:
0% A mental condition has been formally diagnosed but
symptoms are not severe enough either to interfere
with occupational and social functioning or to
require continuous medication;
10% Occupational and social impairment due to mild or
transient symptoms which decrease work efficiency
and ability to perform occupational tasks only
during periods of significant stress, or; symptoms
controlled by continuous medication;
30% Occupational and social impairment with occasional
decrease in work efficiency and intermittent
periods of inability to perform occupational tasks
(although generally functioning satisfactorily,
with routine behavior, self-care, and conversation
normal), due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent
events);
50% Occupational and social impairment with reduced
reliability and productivity due to such symptoms
as: flattened affect, circumstantial,
circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in
understanding complex commands; impairment of short
and long term memory (e.g., retention of only
highly learned material, forgetting to complete
tasks); impaired judgement; impaired abstract
thinking; disturbances or motivation and mood;
difficulty in establishing and maintaining
effective work and social relationships;
70% Occupational and social impairment, with
deficiencies in most areas, such as work, school,
family relations, judgement, thinking, or mood, due
to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities;
speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately, and effectively; impaired impulse
control (such as unprovoked irritability with
periods of violence); spacial disorientation;
neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances
(including work or a work-like setting); inability
to establish and maintain effective relationships;
100% Total occupational and social impairment, due to
such symptoms as: gross impairment in thought
processes or communications; persistent delusions
or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others;
intermittent inability to perform activities of
daily living (including maintenance of minimal
personal hygiene); disorientation to time or place;
memory loss for names of close relatives; own
occupation, or own name.
38 C.F.R. § 4.130, DCs 9201 to 9440 (2005).
Upon review of the pertinent evidence of record, the Board
finds that the competent and probative evidence preponderates
against a finding that the veteran's service-connected
anxiety reaction warrants a rating in excess of 50 percent.
In evaluating the veteran's claim under DC 9400, for
generalized anxiety disorder, effective prior to November 7,
1996, the Board notes the veteran has not worked since the
mid-1970's due to his having narcolepsy. He has reported
having few, if any, friends and he has had continuing
complaints of anxiety attacks and episodes of depression,
more frequent at times. He has reported becoming agitated
when he is around other people and has stated that he prefers
to be alone. The veteran reported having previous thoughts
of suicidal or homicidal thoughts, but he denied having such
thoughts at the May 2004 VA examination. In September 1996,
he interacted fairly well with the examiner who conducted a
private psychological evaluation. His speech was clear and
goal oriented and he was coherent. His insight and judgement
were fair. He stated he does not talk to his neighbors, but
also stated he goes to his daughter's house occasionally to
play cards. The veteran stated he did not have any friends
but the examiner noted the veteran reported to the
examination with a friend. He also stated he attends church
sometimes and likes to go out to eat. At a private
psychological examination conducted in October 1996, the
veteran reported that he plays dominos at a friend's house
and also reported playing with his grandchildren sometimes.
The examiner noted the veteran had moderate deterioration in
social, affective, and occupational functioning. At a VA
examination conducted in October 1996, the veteran stated he
was not short-tempered, but most recently, at the May 2004 VA
examination, stated he loses his temper easily and is
irritable at times.
Based upon a review of the evidence, the Board finds that the
higher 70 percent disability rating cannot be assigned during
any of the appeal period because there is no evidence showing
the veteran had, or more nearly reflected, a severe
impairment affecting the ability to establish and maintain
effective or favorable relationships or the ability to obtain
or retain employment. In this regard, the Board notes the
veteran has not worked since the 1970s, but the record
reveals the veteran could not maintain employment due to his
sleeping disorder, not his anxiety disorder. The Board notes
that he has demonstrated a considerable impairment in
establishing and maintaining relationships as evidenced by
his report of becoming agitated when he is around other
people, his not talking to neighbors, and his preference to
be alone. However, the Board finds the veteran's impairment
due to his anxiety disorder does not more nearly reflect a
severe impairment, for the following reasons.
As noted, the examiner who conducted the October 1996 private
psychological examination noted the veteran had moderate
deterioration in social, affective, and occupational
functioning. In addition, he reported that he likes to go
out to eat and reported going to church sometimes. The Board
also notes that, while the veteran does not have many
friends, he does maintain a few relationships, as he
interacts with his daughter and grandchildren and reported
going to his friend's house to play dominos.
Under the current schedular criteria, the Board finds that an
evaluation in excess of 50 percent is not shown to be
appropriately assignable under the general rating formula.
The evidence has not demonstrated the symptoms or criteria
necessary to warrant a higher evaluation under the current
General Rating Formula for Mental Disorders.
The record shows the veteran has manifested a constant
depressed and anxious mood and he has consistently had
problems sleeping. With respect to the criteria specified
for the 70 percent disability rating, the record shows that,
from July 1999 to February 2005, the veteran did not have any
delusions, hallucinations or suicidal or homicidal thoughts.
At the June 1999 and May 2004 examinations, there was no
evidence of obsessional rituals and his personal hygiene was
good. While he was noted to talk slowly about his anxiety
and medical problems at the July 1999 examination, subsequent
examinations and treatment records indicate his speech was
relevant, coherent, and logical. He was oriented and his
memory was good. The record never shows the veteran
demonstrated impaired impulse control. In this regard, the
Board notes that, at the July 1999 and May 2004 VA
examination, he was described as cooperative, and his
behavior was appropriate. While the veteran reported being
irritable, losing his temper at times, and having thoughts of
hurting others previously, at the May 2004 VA examination, he
stated he has never hurt anyone. The Board notes the veteran
has reported having periods of depression and anxiety attacks
for many years. While the July 1999 VA examination report
notes he has "recurrent anxiety attacks with high anxiety,"
the record does not show the veteran has demonstrated near-
continuous panic or depression and the Board specifically
notes the veteran has repeatedly stated he feels depressed
and anxious "at times". The Board also notes that, at the
May 2004 examination, the veteran stated his periods of
depression come and go and last for two to three days. The
veteran also stated that, while he had panic attacks for many
years, he was not having them presently.
Given the above, the Board finds that the preponderance of
the evidence shows that the veteran's service-connected
anxiety reaction does not more closely approximate the
criteria for a 70 percent rating under the General Rating
Formula for Mental Disorders.
In summary, and for the reasons and bases set forth above,
the Board finds the veteran is not entitled to an evaluation
in excess of 50 percent for anxiety reaction, and the
benefit-of-the-doubt is not for application. See Gilbert, 1
Vet. App. at 55.
ORDER
Entitlement to a rating in excess of 50 percent for anxiety
reaction is denied.
__________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs